The Scottish Government

« Previous | Contents | Next »

Listen

SMARTER JUSTICE, SAFER COMMUNITIES
SUMMARY JUSTICE REFORM - NEXT STEPS >>>

EXECUTIVE SUMMARY

The report is broken into four chapters - this section provides an overview of:

• the main issues addressed in each chapter;
• what we have heard - from the McInnes Committee, consultees and the public on those issues; and
• what we will do as a result.

Detailed proposals explaining our conclusions are given in each chapter.

CHAPTER 1 - THE FUTURE FOR LAY JUSTICE

Issues

• The role of the judge in summary trials is crucial to the effectiveness of the summary justice system. In the district court trials are heard by lay justices.
• The issue of who should preside in summary criminal cases was considered in detail by the Summary Justice Review Committee. A majority of the Committee recommended that we move to a system that employs only professional judges. A minority recommended that lay justices be retained, and that steps be taken to improve their recruitment and training procedures.

What we have heard

• More than 90% of the respondents who commented on this issue disagreed with the recommendation to abolish the role of lay justices.
• Many people believed that lay justices were a good example of community involvement in the justice system.
• A significant number of respondents agreed that difficulties relating to consistency or quality of summary justice could be addressed through better training, recruitment and appraisal of lay justices rather than abolition.

What we will do

• We will retain lay justices to undertake court business with their current powers.
• In future, sitting lay justices will be appointed for fixed terms of five years, which can be renewed until they reach the age of 70. As is the case with part time sheriffs, there will be a presumption that lay justices will be reappointed unless one of a certain number of circumstances applies. These circumstances will include a recommendation from the local sheriff principal that the justice is not reappointed, and may also include failing to sit for a minimum number of days during the previous five-year period.
• We would welcome views as to whether lay justices who sit on the bench should be given a more modern title than 'justice of the peace' and whether a clearer distinction should be drawn in the public mind between sitting and signing justices.
• We will improve and develop lay justice by investing in recruitment, training and appraisal.
• Lay justices will be recruited by a rigorous and transparent process including public advertisement, the provision of full information for applicants, and a formal interview.
• The current Justice of the Peace Advisory Committees (JPACs - organised by local authority area) will be replaced with a new JPAC for each sheriffdom, to be chaired by a sheriff principal and including representatives from active lay justices and the wider community; these new JPACs might be formally constituted as sub groups of the Judicial Appointments Board.
• Training will be overhauled so that it is better and more consistent - and will be managed on a national basis.
• Justices will be appraised regularly, according to transparent criteria, so that training and development needs can be identified and addressed.
• We intend to retain signing justices, who carry out more limited duties than full justices. We would welcome views as to whether it would be useful for local authorities to be able to nominate a higher proportion of their councillors than the current maximum of one quarter as signing justices.

CHAPTER 2 - COURT ADMINISTRATION AND FINES ENFORCEMENT

Issues

• An efficient courts service is a prerequisite for an efficient summary justice system. The Summary Justice Review considered what structure would be best for administering summary criminal courts. They recommended that the administration of the summary courts be unified under the control of the Scottish Court Service (SCS).
• The fine is a widely used penalty which can be very effective if it is properly enforced. It is important, therefore, that there is an effective system in place to enforce fines. The McInnes Committee recommended that the Executive give a single public sector body responsibility for the collection and enforcement of all financial penalties.
• Many suggestions as to how fine enforcement might be improved have been made - we need to take the best suggestions and develop an enforcement regime that uses fines appropriately and collects them effectively.

What we have heard

• Over two-thirds of the respondents who commented on court structures supported unification of the summary court system. They believed it would improve the delivery of summary justice in a number of ways, including:
• • consistent planning and delivery of court services across Scotland by a specialist service provider;
  • a single set of procedures and a single IT system, facilitating more co-ordinated case handling - whilst retaining flexibility for a degree of local innovation;
  • a simpler system whose organisation is more transparent and accountable - with scope to roll out improvements in practice quickly and effectively; and
  • more flexibility in resource use. Efficient delivery of the courts business is highly dependent on optimal use of a very specialised estate;
• Some respondents who supported unification noted the need to manage successfully the transfer of staff and buildings from local authorities to the Scottish Court Service.
• Many respondents argued against the creation of a national fine enforcement agency, and believed that the administration and collection of fines should remain with the courts.

What we will do

• We have decided to proceed with unification of the summary courts administration. Unification will be at the heart of an efficient and effective summary justice system.
• We believe that unification should be phased-in across Scotland, on a sheriffdom by sheriffdom basis. This will allow change to be effectively managed, lessons to be learned as the project rolls out, and appropriate local solutions to be developed as part of the unification package.
• Unification will be based firmly on the principle of strengthening the links between courts and communities - the new unified system will continue to see court business conducted in locations throughout Scotland, taking account of the needs of victims, witnesses and the communities themselves.
• Further work is required on issues such as costs, estates, staffing and IT to ensure that unification progresses smoothly and its benefits are realised - we will take that work forward with local authorities, district courts and other relevant partners to ensure that the needs of court users, staff and the organisations involved in the change process are taken into account and carefully managed.
• As court unification proceeds (on a sheriffdom by sheriffdom basis) the administration of all fines imposed in and collected by the unified summary criminal court will become the responsibility of the SCS. SCS will be responsible for the collection and enforcement of all court fines, fiscal fines and registered fines in a sheriffdom post-unification.
• We will develop enhanced administrative arrangements to ensure fines are effectively enforced in liaison with key stakeholders - and bring forward legislation to achieve this where necessary in the lifetime of the current Parliament.
• An SCS-led project team will investigate a number of other potential improvements to the current fine enforcement regime in liaison with key stakeholders. Where these prove to be beneficial they will be rolled-out nationally. Where necessary, legislation will be introduced in the lifetime of this Parliament making it possible for pilots of new approaches to take place, and national roll-out to proceed where they prove to be successful.

CHAPTER 3 - ALTERNATIVES TO PROSECUTION

Issues

• The McInnes Committee recommended that a number of cases proceeding to court should be diverted to appropriate alternative disposals that would provide a faster, more appropriate and proportionate response to the offence in question.
• Their recommendations included increasing the scope of police fixed penalty notices; measures to increase the use, and levels, of 'fiscal fines'; and the introduction of a fiscal compensation order, allowing the prosecutor (in appropriate cases) to give an alleged offender the opportunity to pay compensation to the victim, payment of which would result in the case not being taken to court.
• The Committee also recommended that those offered a fine as an alternative to prosecution should be deemed to have accepted that offer it they did not challenge it - if they wanted to contest the issue in court they would need to make that clear - otherwise the fine would be enforced. This would be known as the 'opt-out' approach.

What we have heard

• Opinions on these issues were mixed - many respondents felt that alternatives to prosecution should be more widely available, and could be valuable. However, concerns were expressed over using these options in the case of serious or repeat offenders.
• A number of practical difficulties existed with the 'opt-out' approach and a number of people were opposed to it.
• Alternatives should offer an appropriate penalty for the offence committed - that might not always be a financial penalty.

What we will do

Fixed penalty notices

• We remain committed in principle to a further extension of the use of fixed penalty notices, with appropriate guidelines and safeguards in place.
• We will monitor the operation of the anti-social behaviour pilot scheme (which has extended the use and availability of fixed penalty notices to a number of 'nuisance' offences) before taking a decision on whether to roll out their use further.

Fiscal fines and fiscal compensation orders

• At the moment a procurator fiscal can offer a fine of up to £100 to an alleged offender - payment of which stops any further court action being taken. We believe that the maximum 'fiscal fine' level should be increased to £500, supported by clear guidelines to prosecutors from the Lord Advocate.
• We believe that the fiscal compensation orders (FCOs) proposed by the Committee should be introduced and that there should be an upper limit on their use equivalent to level 5 on the standard scale of summary fines (£5,000).
• FCOs should be available both for cases where quantifiable loss has been established and where the victim has been subjected to frightening distressing or annoying behaviour, or behaviour which has caused nuisance or anxiety.
• The impact of new provisions relating to fiscal fines and FCOs will be closely monitored.
• We will introduce a number of technical changes to the operation of fiscal fines and compensation orders to ensure that they are effectively used and enforced. These include:
• that, upon receipt of a fiscal fine or FCO notice the accused should have to take positive steps to indicate if s/he would rather have a court hearing than pay the penalty;
• that timeous payment of the penalty will entitle the accused to a discount;
• that failure to make payment will result in the fine becoming registered at its full value;
• that unpaid fiscal fines and FCOs should no longer be enforced by civil diligence, but should instead become registered fines and be enforced as if they had been imposed by a court; and
• that prosecutors should be permitted to provide details of previously accepted fiscal fines and FCOs to a court in the event of subsequent conviction - but only for a period of two years following imposition of the penalty. This fact would be made clear to the accused in the terms of the alternative.

'Community Fiscal Fines'

• We consider that it would be useful to introduce a new option for fiscals to use where reparation to the community rather than a financial penalty is appropriate.
• We will consult further on how best community fiscal fines could be delivered.

Feedback to communities

• We will ensure that victims are able to obtain information about the offer of a fiscal fine.
• We will ensure that new arrangements for liaison between the criminal justice agencies and local communities include summary information to communities about the use and impact of alternatives to prosecution.

CHAPTER 4 - BETTER CASE HANDLING FOR BETTER OUTCOMES

Issues

• We need to ensure that procedures in the summary justice system are as efficient as possible and do not create perverse incentives. This requires an examination of areas where the system is slower than it could be, and the identification of procedural and process improvements.
• The McInnes Committee identified a number of areas where it felt that current procedures could be improved without compromising the quality of justice. These included the composition of police reports; encouraging early pleas; 'rolling cases up'; changing the rules relating to intermediate diets, extending the use of trial in absence and developing the use of undertakings to appear in court.
• They recommended that the sentencing powers of sheriffs sitting in summary cases should be increased.
• They also recommended that a summary appeal court be established.

What we have heard

• Fewer responses were received on these technical issues - a number of respondents called on system changes to be introduced wherever they would lead to improvements in speed and quality and provide a better deal for victims and witnesses.
• Those respondents who did offer a view welcomed the report's recommendations on sentence discounting and encouraging appropriate early pleas.
• A majority of those who responded were opposed to extending the use of trials in absence.
• Most people who responded on the issue agreed that witnesses should not be required to attend trial unless their evidence was likely to be disputed.

What we will do

We will introduce measures to improve speed in the summary justice system without compromising quality. Steps have already been taken to deliver on a number of the recommendations contained in the McInnes report:

• We have brought forward legislative change requiring sentencers to take into account the stage at which an accused intimated his or her intention to plead guilty in determining sentence.
• Protocols and guidelines have been developed between prosecutors and police dealing with non-reporting of certain minor offences.
• The use of restorative police warnings for young people who have committed minor offences is being piloted.

But further change is required to ensure that summary justice is smarter and faster. We will promote local initiatives to deal with local problems, using national mechanisms and changes in the law to deal with problems which local areas cannot solve:

• We will implement the report's recommendations in relation to custodial sentencing powers of sheriffs sitting summarily. They will be able to sentence up to one year in custody in future. We will also raise the maximum fine which a sheriff sitting summarily may impose for a common law offence to £10,000 as an interim measure pending a fundamental look at the structure of fines by the Sentencing Commission.
• We have established the National Criminal Justice Board to set targets and goals for effective operation of the criminal justice system from the point at which a crime is detected until its disposal. We shall provide practical support to the Board to help it fulfil that role.
• We will roll-out local criminal justice boards to ensure that local efficiency and effectiveness issues in relation to the operation of summary justice are identified and tackled by the partner agencies in the criminal justice system.
• We are modelling some of the detailed procedural changes suggested in the McInnes report and will roll these out more widely if they prove to be successful (e.g. in relation to the increased use of undertakings by the Police). In relation to 'roll-ups' we will make the necessary legislative changes to allow these to take place between sheriffdoms, but will test the advantages and disadvantages of such an approach before changing existing practice.
• We will work to provide increased disclosure in summary cases as resources permit.
• We will legislate to bring into effect the Committee's recommendations on evidence and the conduct of intermediate diets.
• We agree that the electronic version of case documentation should be regarded as the principal copy and will take steps to implement that change.
• We will work with the Scottish Legal Aid Board and the legal profession to develop a reformed system of summary criminal legal aid which will include measures to underpin and encourage the effective implementation of the changes recommended by the Committee.
• We will legislate to provide for trial in absence in summary cases where the accused does not attend and the court considers that it is in the interests of justice to proceed.
• We will discuss with the judiciary the latest information on appeal delays, to consider how best to use the skills of judges at all levels to meet the Committee's aim of relieving pressure on the High Court.
• We will implement the provisions of the Vulnerable Witnesses (Scotland) Act 2004 (intended to help child and vulnerable adult witnesses give their best evidence) in summary cases.
• We will take forward the recommendations made by the Committee in relation to social enquiry reports as part of our wider programme of work on reducing reoffending and the creation of Community Justice Authorities.

« Previous | Contents | Next »